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Montana's TikTok Ban Bill: What to Know
The US state of Montana is weighing a ban on TikTok. Here's what to know.
Montana’s legislature recently passed a bill to completely ban TikTok in the state. After it arrived on the governor’s desk for signature, he sent it back to the legislature with a proposed amendment. Montana could be the first US state to attempt to completely ban TikTok — and here’s what to know. Brought to you by Global Cyber Strategies, a Washington, DC-based research and advisory firm.
Montana’s current TikTok bill seeks to prohibit TikTok from operating in the state and prohibit app stores from letting users download it — but an amendment from the governor, amid many legal and technical criticisms, could hugely broaden its scope.
What’s in Montana’s TikTok Bill?
Montana’s TikTok ban bill, or SB0419, would seek to ban TikTok from operating in the state. Specifically:
TikTok as a company could not operate in Montana.
Mobile app stores could not allow people in Montana to download the app.
Entities violating these prohibitions would be fined $10,000 for each “discrete violation” and then an additional $10,000 each day it continues thereafter.
The bill explicitly does not apply to TikTok users; the prohibitions and penalties are focused on TikTok and on the mobile app stores hosting the TikTok app.
Penalties do not apply to “law enforcement activities, national security interests and activities, security research activities, or essential government uses permitted by the governor on the information technology system of the state.”
If the bill becomes law, this would all take effect on January 1, 2024.
SB0419 also named what legislators see as several reasons for its proposal, which were not clearly listed out from one another. These include statements about the Chinese government exercising control over ByteDance (TikTok’s parent company) and compelling it to hand over data; TikTok gathering “significant” amounts of data on users and sharing it with the Chinese government; TikTok failing to remove and possibly promoting “dangerous content” to minors; the app infringing on Montanans’ right to privacy; and TikTok enabling Beijing to “conduct corporate and international espionage in Montana” and potentially track journalists and public officials.
Where Does the Bill Stand?
The bill has not yet become law. While most of the media coverage talks about the Montana legislature “passing” the bill — which it technically did — I think many of these headlines suggest it has already been implemented. Montana Governor Greg Gianforte needed to make a decision on the bill once it was sent to his desk, and he apparently proposed an amendment that the legislature had previously tabled.
Before the initial bill was passed, state Representative Katie Sullivan tried to amend the bill to go well beyond TikTok and focus on prohibiting any social media application “from transferring user information or data obtained from Montana users to foreign adversaries.” She said that:
We can make this count in Montana by coming up with a piece of policy that gets everybody to respect the privacy of all Montanans, and that includes more than just one company and includes more than just one country.
Sullivan also cited the possibility, as the Daily Montanan reported, that the TikTok-focused bill could violate Montana’s Constitution. One provision of the state constitution says that legislators “shall not pass a special or local act when a general act is, or can be made, applicable.” Hence, the concern was that targeting only TikTok in the bill would fall under this category. This issue is not entirely different from the legal concerns associated with a possible federal TikTok ban, which could be challenged in court as “bill of attainder,” or legislation that determines guilt and inflicts punishment on an identifiable individual without judicial trial.
The Montana legislature passed the bill without this amendment. But once it reached the governor’s desk for signature, he apparently reopened that debate. The Wall Street Journal reported on April 25 that the governor proposed an amendment to remove explicit mention of TikTok and ByteDance and replace it with general reference to social media companies and the transfer of user data to foreign adversary countries.
Governor Gianforte’s press secretary said that:
The amendment for consideration seeks to improve the bill by broadening Montanans’ privacy protections beyond just TikTok and against all foreign adversaries, while also addressing the bill’s technical and legal concerns.
So, What Now?
Broadening the legislation does not necessarily and immediately make it better. Instead, it subjects the bill to a whole other host of questions and concerns, including around an excessively wide scope, governmental overreach, and technical misunderstandings. As I have written numerous times over the last 3.5-4 years of the DC “TikTok debate” (such as my recent Slate column), far too many proposals around TikTok, mobile apps, and data on US persons are reductive, binary, and technically uninformed. For example, many politicians discussing TikTok clearly do not fully understand how the modern app ecosystem operates nor how data is broadly collected, shared, and sold on US individuals. Montanan legislators’ hyper-focus on TikTok, and broadly written legislative proposal in response, raises similar questions.
Even the governor’s proposed amendment is very broad. The bill would ban a social media company from operating in Montana and fine app stores for hosting its mobile application if the social media company allows “the collection of personal information or data” (which is virtually every mobile app) and “the personal information or data to be provided to a foreign adversary or a person or entity located within a country designated as a foreign adversary” (which is not fully flushed out). In theory, there are real national security risks to address around foreign governments’ access to data on US persons. But that does not mean every proposal targeting said risk is a good one.
The criticism of the Montana bill has been widespread, such as by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), both of which have voiced legal and technical concerns. On top of that, an Apple- and Google-funded trade group reportedly said that Apple and Google cannot prevent app downloads in a single state. As a policy matter, the risk of governmental overreach is much higher when legislation is this broad and could allow an executive agency to block social media platforms for ill-defined “national security” reasons and without proper transparency, deliberation, publicly documented evidence, and oversight.
It remains to be seen if the bill will become law. Right now, legislators will have to debate the provision they already debated and cast aside — to expand the bill’s focus well beyond TikTok. Either way, there are many reasons Montana’s ban proposal might not materialize. If it became law, TikTok and civil society groups would likely make the same First Amendment and other legal challenges they made to other bills and policies about TikTok (such as former President Trump’s executive order). Observers should watch the news for updates on the governor’s proposed amendment and the many legal challenges that will happen if the bill is again moved forward.
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